Last week we noted that Harper’s Magazine’s popular Harper’s Index had published the preposterous claim that 72 percent of all political ads in 2010 would have been illegal before Citizens United. After our take down, Harper’s published a correction. Unfortunately, as is so often the case, the number is now out there, and we suspect will have currency for quite some time. We’ve found several repostings of this “fact” even since Harper’s posted its correction, see e.g. here, here, and here for starters, and we’re sure that will continue.
But why would anyone believe numbers so grossly disconnected by any kind of reality? I mean, this was not a minor mistake – the Harper’s figure was off by a factor of about 1800 percent. The reason, of course, is that reporting on Citizens United has been so horribly inaccurate and biased.
Recently Dan Abrams and Wendy Kaminer - not exactly members of the vast right wing conspiracy – have taken to print to note the gross errors in reporting on Citizens United. Meanwhile, Stephen Colbert and his new sidekick, erstwhile campaign finance lawyer Trevor Potter, have, in the name of “humor,” led the public to believe that many things of the most dubious legality are clearly legal. For example, for a candidate to call the director of a Super PAC into a room and then pretend to talk to a third person probably does – at least in this humble ex-FEC Commissioner’s opinion – constitute illegal coordination. Forming and capitalizing a corporation for the sole purpose of having the corporation contribute to a Super PAC is – again, at least in the humble opinion of this face deregulator who couldn’t be trusted to fairly interpret or enforce the law – an illegal contribution in the name of another. Unlike Potter, I would never unequivocally tell a client that it was not coordination to hire the candidate’s staff to produce ads – in fact, doing so would create a great many pitfalls that could trigger coordination problems. But Potter can get away with such lighthearted legal advice, and Colbert with following it, precisely because Colbert is a nationally known comedian with the power of Viacom’s legal team behind him. Colbert has political power that protects him where others would be facing an FEC investigation and fines – and possibly even criminal penalties – for for the same activity.
Repeatedly the public is told that Super PACs are dominating the political wars. How many times have you heard this stat: through February 22, the Obama campaign alone had raised more money than all Super PACs combined in this cycle. And Obama doesn’t even have an opponent yet. How many times has it been repeated that Super PACs don’t disclose their donors, even though they do? How many times has it been repeated that 501(c)(4) organizations don’t have to disclose their donors, as if this were new under Citizens United, when in fact they never have had to disclose their donors.
Thus, we have the correction of Harper’s, which merely states blandly,
Harper’s Index incorrectly stated that 72 percent of political ad spending during the 2010 election cycle would have been prohibited before the Supreme Court’s Citizens United decision. In fact, 72 percent of outside political ad spending in the 2010 cycle would have been prohibited before Citizens United and a 2007 decision, Federal Election Commission v. Wisconsin Right to Life, Inc.
But will that actually correct much of anything? Beyond the fact, as we’ve noted, that the original 72 percent figure will still get around, your typical member of the public is unlikely to grasp that “outside political ad spending” (emphasis in original) is such a relatively small percentage of total spending. Moreover, that member of the public is unlikely to know that prior to Citizens United - and its often neglected but equally important sibling, SpeechNow.org v. FEC - much of the spending would simply have taken a different form, that is, the form of issue ads rather than candidate ads. So the number, out there is isolation, is still likely to lead most people to think that the impact of Citizens United has been much greater than it has.
Harper’s wouldn’t for a second print as a “fact” that, say, the median U.S. household income was $1 million, even though the magnitude of error would be less than what they printed about Citizens United. Harvard law professor Larry Lessig claims to be an expert on campaign finance, but (so far as I know) not housing prices. He would never for a second retweet a “fact” that the median home price in the U.S. was $5 million, even though, again, the magnitude of error would be substantially less than the Harper’s Index campaign finance “fact” that Lessig retweeted. Harper’s and Lessig (and the Huffington Post and others) fell for inaccurate and indeed, to anyone really paying attention, preposterous information because it seemed plausible to them. Why did it seem plausible? Because the barrage of reports and releases by “reform” advocates, and the reporting by the press, has been so misleading and inaccurate.
This, of course, is why we have a First Amendment, and why the Supreme Court is not supposed to make its decisions on the basis of public opinion. The Constitution exists to overcome such temporary passions, often based on erroneous information or suspicions, by protecting the rights of all citizens. Citizens United and SpeechNow.org are important cases. But their impact is less than the critics claim, and equally important, none of the dire results that critics predicted have come true. It’s not “the end of democracy as we know it.” We are not being overrun with foreign money (which is still prohibited by law). Voices are not being “drowned out” – rather, voices and ideas are being heard that would not have been heard in the pre-CU/SpeechNow.org era. There is more electoral competition, not less.
The critics of Citizens United and SpeechNow, who for the most part are ultimately motivated by a desire to silence voices with which they disagree, are desperate. They understand that the window of opportunity is closing. 2012 will be the second election cycle under the new, partially deregulated regime. As it becomes apparent that democracy is not endangered, and indeed enhanced, it will be harder and harder to get the public to buy into the hysterical claims that greeted Citizens United. Campaign finance “reform,” never high on the general public’s list of priorities, will sink even lower. Our 35 year national love affair with campaign finance “reform” just didn’t work out that well. It is difficult to think of any measure by which campaign finance regulation since the passage of the Federal Election Campaign Act in 1971 and in particular the 1974 Amendments to that law has benefited our democratic republic. McCain-Feingold clearly failed – no one seriously argues that the campaigns of 2004, 2006, and 2008, in which it held sway, were high points of American democracy, or even better than what came before or since.
And so we see the disinformation campaign now in full swing. And while we find it dismaying, we won’t even try to censor them.